The Biden administration proposed a rule Thursday to prevent schools from flat-out banning transgender students from playing on the sports team that matches their gender identity.
The move comes as attacks on trans rights are picking up nationwide, with particular emphasis on prohibiting trans girls from playing on girls’ sports teams.
Under the proposal, public schools at all levels would not be allowed to “categorically” ban trans students from playing on the team that aligns with their gender. Instead, schools would have to develop “team eligibility criteria” that factor in the sport, the level of competition, and the grade or education level of the athletes.
But this means that schools could still bar trans athletes from elite sports.
“The proposed rule … recognizes that in some instances, particularly in competitive high school and college athletic environments, some schools may adopt policies that limit transgender students’ participation,” the Department of Education said in a fact sheet. “The proposed rule would provide schools with a framework for developing eligibility criteria that protects students from being denied equal athletic opportunity, while giving schools the flexibility to develop their own participation policies.”
It specified that “these criteria could not be premised on disapproval of transgender students or a desire to harm a particular student.”
Trans rights activists slammed the proposal as a betrayal. Instead of actually addressing the issue, writer Erin Reed said, “it’s actually a roadmap to telling schools how to discriminate.”
Civil rights lawyer Alejandra Caraballo pointed out that this could divert resources away from more consequential fights.
The proposal was announced just hours after the Supreme Court ruled that a 12-year-old trans girl in West Virginia must be allowed to compete on her school’s girls’ cross country and track teams. West Virginia implemented a law banning trans girls from girls’ teams in 2021, but that law is being challenged in court. The Supreme Court said that the law cannot be enforced until the case is decided.
Biden’s proposed regulation is one of his administration’s first forays into the highly contentious arena of trans rights. Republican-led states have ramped up their attacks on LGBTQ rights, particularly for trans and nonbinary people. Twenty states, such as Florida, Texas, and Montana, have banned trans girls from playing on girls’ sports teams. Most recently, on Wednesday, Kansas’s Republican-controlled legislature overrode Democratic Governor Laura Kelly’s veto of a bill banning trans girls from playing girls’ sports.
LGBTQ rights activists have slammed these laws as sexist and misinformed. The ACLU pointed out that by singling out trans girls, the laws reinforce the dangerous myth that trans women are sexual predators.
Pediatrician and geneticist Eric Vilain told NPR in 2021 that most laws about trans athletes are not based on science. Being trans doesn’t automatically give an athlete a physical advantage, he said. Instead, the laws—which primarily target elementary and high school students—create opportunities to degrade and humiliate girls by forcing them to prove their gender.